Guest contributor Nicole Rhino spotted the words on a t-shirt, which led to capturing the image of an ice cream face, which resulted in our meme today, which led us down the well-traveled path of copyright questions. (sounds a little Dr. Seuss-y, doesn’t it?)
We are very careful about copyright. In our very early days as designers we used a photo from Google images. It was a simple image of fingers holding a pen, and we used it as a small thumbnail within a newsletter. We thought we were following the rules by changing the image substantially enough – reversing the image so that it would not look exactly the same and only using a tiny portion. We weren’t using it to sell anything. It wasn’t intended to ever be online, only to be printed and used within the office. However, many years later, when we were digitizing newsletters for downloading, the stock image crawlers found the .pdf download link and found the image. (Whoa, right?) It was a hard lesson learned, and we experienced the results of copyright infringement to the tune of $900.
Today’s user journey is another twist in the road – are short phrases copyrighted? Googling “Do yourself a flavor” turns up an interesting old 1961 7-Up magazine ad, on sale through Amazon, so the phrase is not new and original. If we posted the t-shirt from a small Midwest shop, would we get them in trouble too?
From the Stanford University Library:
In these sales-oriented cases, copyright is sometimes stretched to do the work of trademark law. In the world of trademarks, short phrases are protected if consumers associate them with particular goods or services.
More research turns up a couple of tools for checking U.S. patents and trademarks: Trademark Electronic Search System, and also the U.S. Copyright Office. It is tough to trace who currently owns this “phrase” because the search engines are very confusing. However, after cross-comparing some data between TESS and online trademark legal sites, we found this: https://trademarks.justia.com/765/83/do-yourself-a-flavor-76583022.html
It appears that that “Do Yourself A Flavor” is trademarked for retail store services in the field of frozen comestibles and coffee drinks, is owned by Mr. John S. Captain III, and was first used in 1982. (So what about the 7-Up ad?) Mr. Captain has also trademarked Whirla-whip, and Codeword. Following this trail leads us to Portland Tub and Tan, and he is listed through LinkedIn as the owner of this business.
Since we are not selling our meme, and this type of online humor often borrows common phrases and quotations, I think we’re ok with sharing it. As far as claiming it as our phrase? selling it on a product? Can’t do it. I scream, you scream, we all scream . . .